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Michigan Supreme Court Lansing, Michigan

Opinion
WILLIE DRIVER and BEVERLY DRIVER, Plaintiffs-Appellants, v MANSOOR G. NAINI, M.D., and MICHIGAN CARDIOLOGY ASSOCIATES, P.C., Defendants, and CARDIOVASCULAR CLINICAL ASSOCIATES, P.C., Defendant-Appellee.

Chief Justice:

Justices:

Robert P. Young, Jr. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra

FILED AUGUST 1, 2011 STATE OF MICHIGAN SUPREME COURT

No. 140922

BEFORE THE ENTIRE BENCH MARY BETH KELLY, J. In this medical malpractice action, we must decide whether a plaintiff is entitled to amend an original notice of intent (NOI) when adding a nonparty defendant to a pending

action pursuant to this Court's holding in Bush v Shabahang1 and MCL 600.2301 so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations. We hold that a plaintiff is not entitled to amend an original NOI to add nonparty defendants so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations, and we affirm the result reached by the Court of Appeals only and reverse the Court of Appeals' judgment in all other respects. I. FACTS AND PROCEDURAL HISTORY In 2003, plaintiff Willie Driver2 visited defendant Mansoor Naini, M.D., who administered a carcinoembryonic antigen (CEA)3 test to plaintiff. The results indicated that plaintiff had a slightly elevated CEA level. Dr. Naini did not order a colonoscopy or take any further action even though plaintiff was over the age of 50 and had a family history of colon cancer. Shortly thereafter, plaintiff began experiencing unexplained

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Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009).

There are two plaintiffs in this case, but because plaintiff Beverly Driver's claims are derivative of Willie Driver's claims, we use the singular term "plaintiff" to refer to the latter throughout the opinion.
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"Carcinoembryonic antigen" is defined as [a] glycoprotein (carbohydrate plus protein) occurring in the feces (stool), secretions of the liver and pancreas, and the blood plasma of patients with neoplastic (tumors, cancers) diseases and non-neoplastic conditions, as cancers of the colon, pancreas, breast, and lung, alcoholic cirrhosis of the liver, inflammatory bowel disease, rectal polyps, etc. [1 Schmidt, Attorneys' Dictionary of Medicine (Matthew Bender & Co, Inc 2000), p C66.]

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weight loss, and in 2005 a gastroenterologist diagnosed him with stage IV colon cancer with metastasis to the liver. On April 25, 2006, plaintiff's counsel sent a notice of intent (NOI) to file a medical malpractice action to Dr. Naini and Michigan Cardiology Associates, P.C., (MCA) as required by MCL 600.2912b(1).4 Plaintiff complied with the notice waiting period under MCL 600.2912b(1) and timely filed a complaint against Dr. Naini and MCA on October 23, 2006.5 Plaintiff alleged that Dr. Naini had failed to properly screen for colon cancer and alleged that MCA was vicariously liable for the malpractice. In January 2007, Dr. Naini and MCA sent a notice of nonparty at fault to plaintiff's counsel pursuant to MCR 2.112(K). Defendants named Cardiovascular

Clinical Associates, P.C. (CCA) as a potential defendant. Defendants indicated that CCA might be vicariously liable because Dr. Naini worked for CCA at some point during his treatment of plaintiff. On February 1, 2007, plaintiff sent an NOI to CCA and moved to file an amended complaint to add CCA as a defendant pursuant to MCL 600.2957(2), the nonparty fault statute.6 The circuit court granted the motion, and, 49 days later, on March 22, 2007,
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MCL 600.2912b(1) provides: Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.

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There is no dispute that the complaint was timely and valid as to these defendants. MCL 600.2957(2) provides:

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plaintiff filed an amended complaint and added CCA as a defendant to the action. In doing so, plaintiff failed to comply with the 91-day notice waiting period for adding a defendant to an existing medical malpractice action under MCL 600.2912b(3).7 Subsequently, CCA moved for summary disposition, arguing that plaintiff's claim against it was time-barred because the statute of limitations had expired. According to CCA, plaintiff failed to toll the statute of limitations when he did not comply with the notice waiting period. Plaintiff responded that he had timely filed the amended complaint in accord with the nonparty fault statute, MCL 600.2957(2). The circuit court agreed and denied CCA's motion. The Court of Appeals granted CCA leave to appeal and reversed the circuit court and remanded for entry of summary disposition in CCA's favor.8 The Court of Appeals held that plaintiff's claim accrued "at the latest" when he was diagnosed with colon cancer in November 2005 and that plaintiff had two years from that point forward to commence an action against CCA.9 The Court of Appeals reasoned that because plaintiff filed the amended complaint without first complying with the notice waiting period, the Upon motion of a party within 91 days after identification of a nonparty, the court shall grant leave to the moving party to file and serve an amended pleading alleging 1 or more causes of action against that nonparty. A cause of action added under this subsection is not barred by a period of limitation unless the cause of action would have been barred by a period of limitation at the time of the filing of the original action. For purposes of this opinion, we assume, without deciding, that the 91-day notice period under MCL 600.2912b(3) applies.
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Driver v Naini, 287 Mich App 339; 788 NW2d 848 (2010). Id. at 345.

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complaint failed to commence an action that tolled the statute of limitations.10 The Court of Appeals cited Burton v Reed City Hosp Corp,11 in which this Court held that a premature complaint does not commence an action that tolls the statute of limitations in a malpractice suit.12 Here, plaintiff filed his amended complaint 49 days13 after he sent CCA an NOI; therefore, the Court of Appeals concluded, the premature complaint did not toll the statute of limitations and plaintiff's claim had become time-barred.14 However, the Court of Appeals concluded that plaintiff's claim was saved in part by MCL 600.2957(2).15 The Court of Appeals reasoned that because plaintiff's claim was partially valid under MCL 600.2957(2), yet totally barred by MCL 600.2912b, the statutes irreconcilably conflicted.16 The Court of Appeals concluded that MCL

600.2912b was more specific and governed because it applies only in medical malpractice actions, whereas MCL 600.2957(2) applies to actions in general.17 Accordingly, the Court of Appeals reversed the circuit court's order denying CCA's motion for summary disposition and remanded for entry of summary disposition in
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Id. at 348. Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005). Driver, 287 Mich App at 347-348, citing Burton, 471 Mich at 753-754.

The Court of Appeals erroneously stated that plaintiff filed his amended complaint 39 days after he sent CCA the NOI. Id. at 348.
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Id. at 348-349. Id. at 350-351. Id. Id. at 352.

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CCA's favor.18 Plaintiff applied for leave to appeal in this Court, and we ordered and heard oral argument on whether to grant the application.19 II. STANDARD OF REVIEW We review de novo a circuit court's decision on a motion for summary disposition.20 This case requires interpretation of the several statutory provisions

involved. We also review de novo issues of statutory interpretation.21 When interpreting the meaning of a statute, our primary goal is to discern the intent of the Legislature by first examining the plain language of the statute.22 Statutory provisions must be read in the context of the entire act, giving every word its plain and ordinary meaning.23 When the language is clear and unambiguous, we will apply the statute as written and judicial construction is not permitted.24

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Id. at 353-355.

Driver v Cardiovascular Clinical Assoc, 488 Mich 957 (2010). In our order, we directed the parties to address "whether this Court's decision in [Bush, 484 Mich 156], allows for the application of MCL 600.2301 in cases involving prematurely filed complaints under MCL 600.2912b(1), and whether [Burton, 471 Mich 745], retains any viability in light of Bush."
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Allison v AEW Capital Mgt, LLP, 481 Mich 419, 424; 751 NW2d 8 (2008). Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008).

In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999); Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008); Macomb Co Prosecutor v Murphy, 464 Mich 149, 158; 627 NW2d 247 (2001). Danse Corp v Madison Hts, 466 Mich 175, 182; 644 NW2d 721 (2002).

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III. APPLICABLE LAW MCL 600.2912b(1) requires a claimant to submit an NOI to a potential defendant before commencing a medical malpractice suit. This requirement is mandatory25 and applies equally to individuals and professional entities, including professional corporations.26 complaint.27 The Legislature set forth a different set of requirements in MCL 600.2912b(3) for adding a defendant to an existing medical malpractice action. MCL 600.2912b(3) Ordinarily, the claimant must then wait 182 days before filing a

provides for service of additional NOIs on health professionals and health facilities that will be added to an existing medical malpractice action as follows: The 182-day notice period required in subsection (1) is shortened to 91 days if all of the following conditions exist: (a) The claimant has previously filed the 182-day notice required in subsection (1) against other health professionals or health facilities involved in the claim. (b) The 182-day notice period has expired as to the health professionals or health facilities described in subdivision (a). (c) The claimant has filed a complaint and commenced an action alleging medical malpractice against 1 or more of the health professionals or health facilities described in subdivision (a).
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Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 65; 642 NW2d 663 (2002); Burton, 471 Mich at 752-753, citing Omelenchuk v City of Warren, 461 Mich 567, 572; 609 NW2d 177 (2000).
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Potter v McLeary, 484 Mich 397, 402-403; 774 NW2d 1 (2009).

MCL 600.2912b(1). A claimant need only wait 154 days if the potential defendant fails to submit a timely response. MCL 600.2912b(8).

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(d) The claimant did not identify, and could not reasonably have identified a health professional or health facility to which notice must be sent under subsection (1) as a potential party to the action before filing the complaint. [Emphasis added.] The 91-day waiting period required by MCL 600.2912b(3) is consistent with MCL 600.2957(2), which applies to lawsuits generally.28 MCL 600.2957(2) provides: Upon motion of a party within 91 days after identification of a nonparty, the court shall grant leave to the moving party to file and serve an amended pleading alleging 1 or more causes of action against that nonparty. A cause of action added under this subsection is not barred by a period of limitation unless the cause of action would have been barred by a period of limitation at the time of the filing of the original action. [Emphasis added.] The Court of Appeals clearly erred by holding that MCL 600.2912b irreconcilably conflicts with MCL 600.2957(2). The conflict analysis was unnecessary because the Court incorrectly determined that plaintiff's claim was partially saved by MCL 600.2957(2), but completely barred by MCL 600.2912b. As explained later in this opinion, plaintiff's entire claim was time-barred, and neither statute saved the claim. Moreover, the Court of Appeals failed to consider how the 91-day period in MCL 600.2957(2) is consistent with the 91-day notice waiting period in MCL 600.2912b(3). Specifically, nothing in MCL 600.2957(2) excuses a plaintiff from having to wait until the notice period expires before commencing an action against a defendant as is required by MCL 600.2912b(3). MCL 600.2957(2) only requires a plaintiff to file a motion to add a defendant within 91 days of receiving notice of the nonparty at fault; it does not require the plaintiff to file the amended complaint within 91 days. Therefore, a plaintiff can file a motion to add a defendant within 91 days after receiving notice of the nonparty, file an amended NOI, and wait until the notice period expires before filing an amended complaint. And while MCR 2.112(K)(4) (the court rule governing the addition of nonparties to a pending action) does seem to require that a plaintiff file an amended complaint within 91 days, it also states that "[t]he court may permit later amendment as provided in MCR 2.118," and under MCR 2.118(A)(2) "[l]eave shall be freely given when justice so requires." Given the foregoing, the dissent's assertion that MCL 600.2912b and MCL 600.2957(2) are only reconcilable if read in concert with MCL 600.2301 is plainly wrong. To summarize, in order to add a nonparty at fault to a medical malpractice case, a plaintiff should move to add the nonparty within 91 days of receiving notice of that nonparty. Then, in a motion to amend a claim, the plaintiff should indicate that he or she intends to file the amended claim at the conclusion of the NOI waiting period.
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When a claimant files an NOI with time remaining on the applicable statute of limitations, that NOI tolls the statute of limitations for up to 182 days with regard to the recipients of the NOI.29 In a medical malpractice action, a claimant normally has two years from the time his claim accrues to commence a suit.30 A medical malpractice claim accrues "at the time of the act or omission that is the basis for the claim . . . , regardless of the time the plaintiff discovers or otherwise has knowledge of the claim."31 However, when a plaintiff discovers a claim two or more years after the alleged negligent act occurred, then the plaintiff must commence an action "within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later."32

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MCL 600.5856(c) provides: The statutes of limitations or repose are tolled in any of the following circumstances: * * * (c) At the time notice is given in compliance with the applicable notice period under section [MCL 600.2912b], if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.

See, also, Waltz v Wyse, 469 Mich 642, 646 n 6; 677 NW2d 813 (2004).
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MCL 600.5838a(2); MCL 600.5805(1) and (6). MCL 600.5838a(1).

MCL 600.5838a(2) (emphasis added). This provision is generally referred to as the discovery rule.

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IV. ANALYSIS A. PLAINTIFF DID NOT TOLL THE STATUTE OF LIMITATIONS APPLICABLE TO CCA AND HIS SUIT IS TIME-BARRED In this case, the six

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